The shoplifting is a CIMT in the eyes of ICE, the robbery could be used if you had been of a certain age and convicted in a adult court could be used again you, except that they already tried to use it against you. That tells me, that it you might have been too young. I'm thinking ICE screwed themselves by dropping the other case, that they will not be allowed to use that charge against you in the future. You should research the "Federal Juvenile Delinquency Act."
See if any of this helps...
4.4.5 Juvenile Delinquency Adjudications
While juveniles are given the same constitutional protections as criminals, when the act of delinquency is also a crime, delinquency proceedings are commonly understood as unique civil proceedings. In the Matter Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967). A problem inherent in a crime being an act of delinquency is that some states use the criminal courts to ensure the juvenile is given the full panoply of criminal rights. Another court, sometimes a special juvenile court, then adjudicates the person as a juvenile and the criminal “conviction” is then modified or vacated. Yet, the Service may have copies of the original conviction that for all purposes appears to be a regular criminal conviction. A juvenile irrevocably adjudicated a juvenile delinquent is not convicted for immigration purpose, though the adjudication is based on a guilty plea to a crime. Matter of Devison, 22 I & N Dec. 1362, 2000 WL 1470461, Int. Dec. 3435 (BIA, 2000). The BIA has not decided whether a guilty plea by a juve can be an admission of a CIMT and bar relief. If the juvenile finding is based on a guilt plea to a crime and is revocable, it is a conviction. Uritsky v. Gonzales 399 F.3d 728 (6th Cir. Mar 07, 2005). If a juvenile, who commits the crime while a minor, is certified as an adult and convicted as an adult the INS can use the conviction. Vieira Garcia v. I.N.S., 2001 WL 128455 (1st Cir. 2001). The alien has the burden of proving his “conviction” was a “juvenile adjudication.” Matter of Ramirez-Rivero, 18 I & N Dec. 135 (BIA 1981); Matter of De La Nues, 18 I & N Dec.140 (BIA 1981)
State and Foreign juvenile adjudicator proceedings that are analogous to the Federal Juvenile Delinquency Act are also generally not convictions, regardless the name such jurisdicitons give to their proceedings. 18 U.S.C. 5032 (Federal Juvenile Delinquency Act). Despite their similarity to criminal convictions, juvenile adjudications should not be used as conviction for either 240 or 238 (b) purposes. There is a limited exception for some foreign juvenile delinquency adjudications. Such adjudications are sometimes convictions for immigration purposes. Before the new federal conviction definition, the BIA decided that foreign adjudications involving juveniles could be an adult conviction if so treated under the Federal Juvenile Delinquency Act, unless the juvenile proved the foreign court proceedings were juvenile proceedings comparable to those in the United States. Matter of Ramirez-Rivero, 18 I & N Dec. 135 (BIA 1981); Matter of De La Nues, 18 I & N Dec.140 (BIA 1981) (The foregoing analysis is appropriate not only in determining ... whether the offense, by virtue of being a felony punishable by a maximum penalty of death, life imprisonment, or a prison term of 10 years or more, exposes a juvenile to possible criminal prosecution pursuant to the transfer provisions of section 5032 FJDA" and where it does the Service may treat such foreign juveniles as convicted, unless the juvenile proved the foreign court proceedings were juvenile proceedings comparable to those in the United States); Matter of Alcantar, 20 I & N 801 (BIA 1994) . Under the FJDA, where the juveniles are between the ages of 15-18 and commits certain crimes, and the crimes are the basis for the delinquency, they may be treated as an adult.
While juveniles are given the same constitutional protections as criminals, when the act of delinquency is also a crime, delinquency proceedings are commonly understood as unique civil proceedings. In the Matter Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (Delinquency proceedings require proof beyond a reasonable doubt when juve is charged with a crime, despite being a civil proceeding); In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 1436, 18 L.Ed.2d 527 (1967) (Though a civil proceeding, juveniles in delinquency proceedings have right to: (1) adequate notice of the 'nature and terms' of the proceedings; (2) notice of the right to retain counsel, and an obligation on the State to provide counsel for indigents 'in cases in which the child may be confined';(3) the privilege against self-incrimination; (4) rights of confrontation and cross-examination; and (5) a written record 'adequate to permit effective review.) Congress would not have used such a unique civil adjudication to impose immigration consequences without expressly referring to it. Given the common understanding of the unique civil nature of juvenile delinquency proceedings, Congress, if it intended to treat such adjudications as convictions, arguably would not have used the words: “convicted,” “guilty pleas,” or “adjudication of guilt.” Instead, Congress arguably would have generally described the removable conduct: “has engaged in terrorist activity,” “reason to believe has been an illicit trafficker,” or “ has been affiliated with the Communist … party.” Similarly, the legislative history speaks of those “clearly guilty of criminal behavior.” Yet, most delinquency proceedings refer to acts of delinquency and civil adjudications, not crimes and convictions. Despite their similarity to criminal convictions, juvenile adjudications should not be used as convictions for either 240 or 238 (b) purposes.
A problem inherent in a crime being an act of delinquency is that some states use the criminal courts to ensure the juvenile is given the full panoply of criminal rights. Another court, sometimes a special juvenile court, then adjudicates the person as a juvenile and the criminal “conviction” is then modified or vacated. Yet, the Service may have copies of the original conviction that for all purposes appears to be a regular criminal conviction.
Example. In re Devison, 22 I & N Dec. 1362, 2000 WL 1470461, Int. Dec. 3435 (BIA, 2000).
Facts: 4/29/96, D, from the Dominican Republic, was admitted as a LPR. 8/20/92, D pled guilty to attempted possession of a drug. 10/6/92, a New York State Court adjudicated D as a youthful offender sentenced him to 5 years’ probation. 10/13/98, when D was 25, another court record, the “Sentence and Commitment,” showed that after pleading guilty to violating his probation by failing to report to his probation officer, he was resentenced to a 1-year imprisonment. Another record, dated 4/21/99, from the Supreme Court, New York County, certified:
t appears from an examination of the Records on file in this office, that [o]n 10/6/92 the above named Defendant was adjudicated a Youthful Offender. Further that upon that adjudication, the Defendant was sentenced by the Hon. Franklin Weissberg, a Justice of the Supreme Court to 5 years probation. On 10/15/98 probation was terminated unfavorably & Defendant was resentenced to 1 year NYC Dept of Corrections by the Hon. Renee White.
1/13/99, the NTA alleging that D had been convicted of attempted possession of a drug. 110 and 220.16, New York Penal Law. The INS, relying on this certified court records, asserted that D was ineligible for youthful offender treatment when he was resentenced in October 1998 because he was 25 and had already been adjudicated a youthful offender following a felony conviction. The INS noted that, in resentencing D, the court did not indicate that he was adjudicated a youthful offender. Thus, the INS argued that the D’s October 13, 1998, resentencing constituted a conviction for attempted possession of a drug.
Held: Under 101 (a)(48)(A) (conviction), a state’s adjudication of juvenile delinquency, where the delinquent act is a crime, that is similar to a federal adjudication of juvenile delinquency, is not a conviction. 18 U.S.C. 5031-5032 (Federal Juvenile Delinquency Act –FJDA). Re-sentencing as an adult, after probation revocation, does not convert an adjudication to a conviction. (The original sentence controls the characterization of the courts action). Here, NY called its juvenile delinquency law, the Youthful Offender Law. Youthful Offender status vacated what would otherwise be a criminal conviction. Deferred adjudications constitute convictions under the INA while findings of delinquency do not:
[J]uvenile delinquency and youthful offender adjudications are not akin to expungement or deferred adjudication procedures. Under the former, proceedings are civil in nature and the adjudication of a person determined to be a juvenile delinquent or youthful offender is not a conviction ab initio, nor can it ripen into a conviction at a later date. In the case of an expungement or deferred adjudication, the judgment in the criminal proceeding either starts out as a "conviction" that can be "expunged" upon satisfactory completion of terms of punishment and petition to the court, or as a judgment that is deferred pending similar satisfaction of conditions of punishment. In either case, however, neither expungement nor deferral can be presumed, and the original judgment of guilt may remain, or ripen into, a "conviction" under state law. This is a dispositive difference, because a juvenile adjudication cannot become a conviction based on the occurrence or nonoccurrence of subsequent events. To eliminate these distinctions and overrule our well-established precedents on these issues, we would require clearer direction from Congress that it intended juvenile adjudications to be treated as convictions for immigration purposes. Id. at 1371-72
Note: There was no indication that Congress intended an act of juvenile delinquency to be considered a conviction and given the historical nature of this distinction the BIA could not conclude that Congress intended for juvenile civil adjudications to be treated as convictions. The BIA reissued its decision to reject the Service’s argument that NY had a separate juvenile procedure and the Youthful Offender Law was not part of this procedure. The BIA decided the Youthful Offender Law was “similar in nature and purpose” to the FJDA and that was all that mattered. Both the state and federal definitions were similar and both said a “youth/juvenile” finding is a civil determination of status that kept the court action from being a conviction. This finding is not subject to continued good behavior after the passage of time, it is decided before the juvenile is “rehabilitated.”
Example. Vieira Garcia v. I.N.S., 2001 WL 128455 (1st Cir. 2001)
Fact: 12/22/87, VG, from Cape Verde and a LPR, entered with his family at age 9. 3/96, VG committed a crime, probably a gun assault, and Rhode Island filed a delinquency petition in Rhode Island Family Court. The delinquency petition was later dismissed, R.I. charged VG as an adult but then dropped the case. 8/26/96, VG attempted to steal platinum tire rims from an automobile. R.I. Gen. Laws 11-41-6, 11-41-5, and 11-41-1. At the time of this crime, VG was 4 days shy of his 18th birthday. Because he had been waived out of juvenile court after the first offense, he was charged as an adult for the second offense. R.I. Gen. Laws 14-1-7.1(c) ("waiver of jurisdiction over a child ... shall constitute a waiver of jurisdiction over that child for the offense upon which the motion is based as well as for all pending and subsequent offenses of whatever nature...."). VG pled guilty to the charges and was sentenced to 10 years, with 2 years to serve, 8 years suspended, and 8 years probation. The INS sought removal as an agfel. 237(a)(2)(A)(iii), 101(a)(43)(G) ("a theft offense ... for which the term of imprisonment [is] at least one year"). VG argued whether or not he has a "conviction" for immigration purposes should be determined by federal law, not Rhode Island state law. He argued that applying the Federal Juvenile Delinquency Act (FJDA), 18 U.S.C. 5031, which defines a juvenile as one who is under 18, as opposed to state law, would avoid disparate treatment for the crime depending solely on where the crime took place. Since VG was only 17, "the offense was a delinquency and not a conviction for immigration purposes." The IJ noted that the proceedings took place within the US, instead of a foreign nation, and that R.I. treated VG as an adult, not as a juvenile. The IJ held that the petitioner had been "convicted" of an agfel after admission and was deportable as charged. The IJ ordered him removed.
The BIA applied the new definition of "conviction" found at 101(a)(48) IIRIRA. The BIA stated that "n passing this legislation [the IIRIRA], Congress could have, but did not, exclude juvenile offenses...." The BIA also commented on the legislative history of the IIRIRA, noting that the definition of conviction was deliberately broadened beyond that of the prior definition. The BIA ultimately determined that Congress's intent to expand the definition of conviction is clear and there is "no need to adopt a federal standard for adjudicating removal cases for those aliens who have received convictions prior to their 18th birthday." It dismissed the appeal.
Held: The courts/BIA will not treat all crimes before age 18 as acts of delinquency with a delinquency adjudication, instead of a crime with a conviction. Juveniles who are convicted as an adult for a crime committed when they were minors have a conviction for immigration purposes. When a state adjudicates a minor, as either a juvenile or an adult, the federal courts are bound by that decision and will not examine the FJDA to see if the minor could have been treated as a juvenile under the FJDA. If an alien’s crime is under foreign law while under age 18, the BIA may examine the FJDA to decide whether they could have been treated as a juvenile under the FJDA. If so, their conviction may be treated as a juvenile delinquency instead of an adult conviction for immigration purposes. But this analytical approach will not be expanded to cover juveniles prosecuted under state laws. Instead, they are covered by the new conviction definition which could have but does not create an exception/exclusion for juveniles crimes. So, the courts give full faith and credit to state courts judgments to adjudicate a minor as a juvenile or as an adult. 101(a)(48).
Uritsky v. Gonzales 399 F.3d 728 (6th Cir. Mar 07, 2005)
Facts. In 96, Uritsky, of Ukraine and Israel, entered NIV at age 11, and became a LPR on 1/4/02.At age 17, Uritsky had intercourse with a girl of 14. 9/24/02 Uritsky pleaded guilty and was convicted of sexual conduct 3rd, Mich. Comp. Laws § 750.520d(1)(a), which prohibits sexual penetration of another person who is between ages 13-16. Under Michigan law, the maximum sentence for this offense is 15 years of imprisonment. Mich. Comp. Laws § 750.520d(2). The Court sentenced Uritsky to 2 years probation, fines, and costs. The judgment also provided that "[n]o judgment of conviction is entered. The defendant is assigned to youthful trainee status[.]" 11/2/02, the NTA charged him with "removability" as an agfel. § 237(a)(2)(A)(iii), as "murder, rape, or sexual abuse of a minor." § 101(a)(43)(A). In Matter of Devison, supra, the BIA found that an adjudication of youthful offender status pursuant to N.Y.Crim. Pro. Law § 720 does not constitute a conviction under section 101(a)(48)(A) of the Act because it is analogous to a determination of juvenile delinquency under the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 50131-5042 ("FJDA"), in several ways, the most notable being that, once an individual is determined to be a youthful offender under New York law, his or her conviction is vacated. Because the vacation of the conviction does not depend on the individual's future good behavior, we found that the adjudication is not an expungement or other rehabilitative act. Moreover, we concluded that a youthful offender adjudication does not, in fact, fit within the scope of the definition of the term "conviction" contained in section 101(a)(48)(A) of the Act.
Held. Michigan Youthful trainee designations are convictions for immigration purposes under § 101(a)(48)(A). The BIA distinguishes between revocable YTA adjudications and irrevocable juvenile delinquency "status" adjudications. A criminal action against a juve is not completely vacated under Michigan YTA law until the juve completes his or her probation or sentence and a judge may revoke the youthful trainee status at any time. These distinctions between the Michigan YTA and the FJDA make the Michigan program more analogous to a rehabilitative expungement than an adjudication of juvenile delinquency. The Michigan YTA permits trial courts to assign individuals between the ages of 17 and 20 who plead guilty to a criminal offense to youthful trainee status. Mich. Comp. Laws § 762.11. The trial court does not enter a judgment of conviction but during the probationary sentence as a youthful trainee, the court retains discretion to "revoke that status at any time ... [and] enter an adjudication of guilt and proceed as provided by law." Mich. Comp. Laws § 762.12. Also, "If the status of youthful trainee is revoked, an adjudication of guilt is entered, and a sentence is imposed ...." Id. Assuming that the probationary period is served without incident, "upon final release of the individual from the status of youthful trainee, the court shall discharge the individual and dismiss the proceedings." Mich. Comp. Laws § 762.14(1). Uritsky argues that the only difference between the New York statute construed by Devison and the Michigan YTA is that the latter permits revocation of youthful trainee status while the former does not. Ejelonu v. INS, 355 F.3d 539, 554 (6th Cir.2004) (although YTA does not define petitioner's guilty plea as a conviction per se, it was certainly not unreasonable for the immigration judge or Board to determine that it was a conviction within the meaning of § 1101(a)(48)(A)(i) (dissent)). The 6th decided YTA sentences are immigration convictions.
Note: The BIA has not decided whether a guilty plea by a juve can be an admission of a CIMT.
